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Conry v. Baker

United States District Court, D. Colorado

July 28, 2015

SUZANNE CONRY, an individual, Plaintiff,
v.
EUGENE H. BAKER, an individual, BERNARD C. MAYNES, an individual, B&B 2ND MORTGAGE, LLC, a Colorado limited liability company, B&B VENTURES, LLC, a Colorado limited liability company, HIGH POINTE, LLC, a Colorado limited liability company, TERRY D. HAMILTON, an individual, CHEM-AWAY, INC., a Colorado corporation, SHARON M. HAMILTON, an individual, and CHEM-AWAY, INC., a California corporation, Defendants, and TERRY D. HAMILTON, an individual, Third-Party Plaintiff,
v.
THOMAS W. METCALF, an individual; THOMAS W. METCALF, ATTORNEY AT LAW, a professional law firm; ROBERT E. RAY, an individual; LAW OFFICE OF ROBERT E. RAY, a professional law firm, Third-Party Defendants.

ORDER

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Plaintiff's Urgent Ex Parte Petition for Prejudgment Attachment and Issuance of Writ [#17][1] (the "First Motion") and on Plaintiff's Amended Second Request for This Court to Grant an Order Re: Urgent Unopposed Ex Parte Petition for Prejudgment Attachment and Issuance of Writ [#75] (the "Second Motion").[2] Plaintiff, who proceeds in this litigation as a pro se litigant, [3] seeks prejudgment attachment on certain property allegedly owned by certain Defendants to this lawsuit. Specifically, Plaintiff seeks attachment of $250, 000 held by the Weld County M. Hamilton, Chem-Away, Inc. of California, and Chem-Away, Inc. of Colorado (collectively, for purposes of this Order only, "Defendants").[4]

Under Fed.R.Civ.P. 64(a): "At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies." Under Fed.R.Civ.P. 64(b): "The remedies available under this rule include the following-however designated and regardless of whether state procedure requires an independent action: arrest; attachment; garnishment; replevin; sequestration; and other corresponding or equivalent remedies." The parties do not assert that a federal statute here applies.[5]

In Colorado, prejudgment attachment is authorized under limited circumstances pursuant to Colo. R. Civ. P. 102. See Young v. Ewen, No. 07-cv-01223-MSK-CBS, 2007 WL 2792448, at *2 (D. Colo. Sept. 25, 2007). According to Colo. R. Civ. P. 102(a):

(a) Before Judgment. Any party, at the time of filing a claim, in an action on contract, express or implied, or in an action to recover damages for tort committed against the person or property of a resident of this state, or at any time after the filing but before judgment, may have nonexempt property of the party against whom the claim is asserted (hereinafter defendant), attached by an ex parte order of court in the manner and on the grounds prescribed in this Rule, unless the defendant shall give good and sufficient security as required by section (f) of this Rule. No ex parte attachments before judgment shall be permitted other than those specified in this Rule.

A writ of attachment under Colo. R. Civ. P. 102 cannot issue without an affidavit from the plaintiff containing specific information. Young, 2007 WL 2792448, at *2. According to Colo. R. Civ. P. 102(b):

(b) Affidavit. No writ of attachment shall issue unless the party asserting the claim (hereinafter plaintiff), his agent or attorney, or some credible person for him shall file in the court in which the action is brought an affidavit setting forth that the defendant is indebted to the plaintiff, or that the defendant is liable in damages to the plaintiff for a tort committed against the person or property of a resident of this state, stating the nature and amount of such indebtedness or claim for damages and setting forth facts showing one or more of the causes of attachment of section (c) of this Rule.

Plaintiff asserts that she has provided sufficient evidence to meet the requirements of the following portions of Colo. R. Civ. P. 102(c):

(c) Causes. No writ of attachment shall issue unless it be shown by affidavit or testimony in specific factual detail, within the personal knowledge of an affiant or witness, that there is a reasonable probability that any of the following causes exist:
(1) The defendant is a foreign corporation without a certificate of authority to do business in this state....
(4) The defendant is presently about to remove his property or effects, or a material part thereof, from this state with intent to defraud, delay, or hinder one or more of his creditors, or to render process of execution unavailing if judgment is obtained....
(7) The defendant is presently about to fraudulently convey, transfer, or assign his property or effects, or a material part thereof, so as to hinder or delay one or more of his creditors, or to render process of execution unavailing if judgment is obtained.
(8) The defendant is presently about to fraudulently conceal, remove, or dispose of his property or effects, or a material part thereof, so as to hinder or delay one or more of his creditors, or to render process of execution unavailing if judgment is obtained.
(9) The defendant has departed or is presently about to depart from this state, with the intention of having his property or effects, or a material ...

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